I dissent.
I cannot agree that a cause of action in the wife for her personal injuries is a “community cause of action.” As I pointed out in my dissent in Zaragosa v. Craven, 33 Cal.2d 315, 325, et seq. [202 P.2d 73], the wife has a right to sue alone for her personal injuries (Code Civ. Proc., § 370; Sanderson v. Niemann, 17 Cal.2d 563, 567 [110 P.2d 1025]), and the recovery therefor should be her sole and separate property (William Quinby de Funiak, Principles of Community Property, pp. 225, 231, 232; 24 Cal.L.Rev. 739, 741; Rest. Torts, §487).
In the Zaragosa case I pointed out that since the 1921 amendment to section 370 of the Code of Civil Procedure, a married woman may sue without her husband being joined as a party in all actions “.' . . including those for injury to her person. ...” and that any recovery received by her should, logically, be her separate and personal property. This court, however, continues to hold, without due consideration, that the cause of action for the wife’s personal injuries is a community cause of action and that any recovery therefor should also be community property. This holding, carried to its illogical conclusion, prevents the injured, wholly innocent, wife from recovering a single cent if her husband was guilty of contributory negligence. To hold that since the wife may sue alone for her personal injuries any recovery therefor would be her separate property would not constitute judicial legislation but would be, merely, a reasonable interpretation of the statutes in the light of everyday common sense. The only reason given for barring the injured wife of a contribu*261torily negligent spouse is that he might profit from his own wrong because of the community property theory concerning the damages. Surely it would not be too difficult, or onerous, for a judge or jury to segregate the damages which should be considered a community expense and those which should be considered compensatory to the wife for her pain, suffering, disfigurement and temporary and future disability. Such segregation of damages is often accomplished in other situations. No difficulty is encountered in establishing compensatory and exemplary damages and I see no reason why the obstacle here should not be surmounted with even greater ease. To hold that any recovery for personal injuries of a married person is community property suggests numerous injustices which might occur. Suppose, for example, that a wife is permitted to recover $10,000 for the loss of a leg. The sum recovered immediately becomes community property over which the husband has control. He may dissipate it, or spend it unwisely. The marriage may be dissolved, through death or divorce, and the wife will be left without any compensation for her disfigurement and permanent disability. Presumably, however, in the situation which I have just suggested this court would permit the husband to relinquish his share in the sum recovered to the wife if he so desired.
In the instant case, the wife’s cause of action for her injuries arose when the accident occurred. Thereafter, the husband sought to relinquish to her, by written agreement, any interest he might have in that cause of action. In holding that the negligent husband would still be profiting by his own wrong, a majority of this court says “Even if it is assumed that such a relinquishment is effective between the spouses, its execution does not prevent the negligent husband from profiting by his own wrong. By his act of relinquishment Mr. Kesler sought to exercise control over his interest in the community cause of action and give up his rights in the recovery. The right to dispose of property, however, constitutes a major interest of the owner therein, and if by the exercise of such right the owner could avoid the effect of his contributory negligence and thus create an enforceable right in his donee that did not theretofore exist, he would in fact profit by his own wrong. Accordingly, the objective of preventing unjust enrichment cannot be accomplished by a voluntary relinquishment of the negligent husband’s interest to his wife.” When this holding is considered in connection *262with that of Flores v. Brown, 39 Cal.2d 622 [248 P.2d 922], it becomes at once apparent that a majority of this court will fit its law to the facts as it chooses without regard to either logic or justice.
In the Flores case, Mr. Flores and a son were killed, Mrs. Flores and their daughter were injured. This court refused to impute the contributory negligence of Mr. Flores to his wife so as to bar her recovery for her injuries and the death of their son. It was there said: ‘1 When the marriage is dissolved, however, the interests in any of these causes of action become separate property, and it becomes possible to segregate the elements of damages that would, except for the community property system, be considered personal to each spouse. Under these circumstances the objective of preventing unjust enrichment may be accomplished by barring only the interest of the negligent spouse or his estate.
“Mr. Flores died in the same accident in which his wife was injured. To allow her to recover for her personal injuries will in no way enrich Mr. Flores or those who might take through him. . . .
“When the husband is dead, not only is the reason for the rule imputing his negligence to his wife gone, but to apply it defeats its own purpose. It is but a windfall to a defendant who negligently injures a wife or causes the death of a minor child that recovery may be barred because the wife’s husband was also negligent. Although allowing the negligent defendant to escape liability has been considered a lesser evil than allowing the negligent spouse to profit from his own wrong, surely the former evil may not be balanced by the latter when the latter is no longer present.” (Emphasis added; Flores v. Brown, supra, 39 Cal.2d 622, 631-632.)
The cause of action for personal injuries, or death, arises at the time of the accident. It has been held that a cause of action for personal injuries of either a husband or wife is community property. Mrs. Flores’ cause of action for her own personal injuries was, therefore, community property because it arose at the time of the accident in which her husband was killed. The marriage was not dissolved by death prior to the time, the cause of action arose! Any damages recoverable are so only because of the cause of action. Had it not been for the cause of action there would have been no recovery. If the cause of action is community property, then the recovery must also be community property inasmuch as this court has held that a relinquishment after the cause *263of action has arisen is ineffectual! To hold that Mr. Flores’ death, after the cause of action arose, was sufficient to release to Mrs. Flores any recovery for her personal injuries but points out the factual similarity between the two cases and the illogical dissimilarity in the holdings. To be sure, Mr. Flores could not actually spend the money recovered by Mrs. Flores, but through his death he enabled his widow to receive a benefit she would not otherwise have had because of his contributory negligence. By his death, he created in her an “enforceable right . . . that did not theretofore exist” and “in fact” profited by his own wrong! The majority, however, finds no unjust enrichment in the Flores case and, in so finding, permits an event occurring after the cause of action arose to change the character of the cause of action. In this ease we find no such “permission” and the injured spouse is barred because her negligent spouse might profit from any recovery even though he has voluntarily relinquished any and all interest he might have in that recovery.
Other states with identical statutes have reasoned the matter out logically and have concluded that personal injuries require personal compensation. In Soto v. Vandeventer, 56 N.M. 483 [245 P.2d 826], two questions were raised. The first was whether a married woman in New Mexico had the right to prosecute in her own name a cause of action against one who negligently inflicted bodily injuries upon her; and the second was whether the proceeds of a judgment on account of such injuries belonged to the wife as her separate property or were an asset of the community of herself and husband. The definition of what constitutes separate property of either spouse is identical to that pertaining in California (Civ. Code, §§ 162, 163), as is the definition of that which constitutes community property (Civ. Code, § 164). The Supreme Court of New Mexico, in an opinion written by the able and learned Chief Justice James B. McGhee, held that a married woman so injured had the right to prosecute in her own name a cause of action against one who negligently injured her, and that the proceeds of any judgment recovered by her would be her sole and separate property.
In Soto v. Vandeventer, supra, the New Mexico Supreme Court, speaking through Mr. Justice McGhee, has this so say: “We are of the opinion that reason, justice and a fair interpretation of our community statute, construed either in the light of the common or Spanish law, require that we *264hold the cause of action for the personal injury to the wife, and for the resultant pain and suffering, belongs to the wife, and that the judgment and its proceeds are her separate property. She brought her body to the marriage and on its dissolution is entitled to take it away; she is similarly entitled to compensation from one who has wrongfully violated her right to personal security. If any writer has ever said a kind word for the majority holding, it has escaped our notice.
“Under the majority doctrine, if the wife were riding a horse she had brought to the marriage and some driver of a motor vehicle negligently struck her and the horse, throwing both into a wire fence, breaking the leg of each and also disfiguring them, the cause of action for the damage to the horse would belong to the wife, but that for the injury to her would belong to the community and the husband would receive one half of the proceeds of a judgment. In addition, the husband could, if he desired, refuse to bring suit for the injuries the wife had sustained. We decline to adopt such a rule in New Mexico.
“The cause of action for the damages to the community for medical expenses, loss of services to the community, as well as loss of earnings, if any, of the wife still belongs to the community, and the husband as its head is the proper party to bring such an action against one who wrongfully injures the wife.”
Nevada also holds that compensation for a personal injury belongs to the person injured. (See Fredrickson v. Watson Const. Co. v. Boyd, 60 Nev. 117 [102 P.2d 627, 628].) In the Fredrickson case, the court said that “ [i]n fixing the classification of the proceeds flowing from compensation for a personal injury to the wife in this case, it seems unnecessary to discuss the refinements involved in the question of whether a chose in action for a tort is property, for the reason that the judgment and proceeds flowing therefrom are conceded to be property, and the judgment takes its character from the right violated, namely, the right of personal security.” (Emphasis added.)
It should also be noted that Orrin K. McMurray, former Dean of the College of Jurisprudence, University of California, calls the community property doctrine of recovery for personal injuries “absurd” and “utter nonsense” (2 Cal.L.Rev. 161, 162). In an article by Green, “The Texas Death Act,” 26 Texas L. Rev. 461, the doctrine is strongly *265criticized. In McKay’s Community Property (2d ed.), section 378, it is shown that to take from the wife the cause of action and the compensation “impairs her right of personal security, which the' law of community was not intended to do. ’ ’ Mr. McKay also states that the right to personal security is individual and cannot be held in common with another. Mr. DeFuniak (Principles of Community Property, § 82) feels that the right of action for injury to the person is intended to repair or make whole the injury and that the compensation partakes of the same character as that which has been injured or suffered loss.
A majority of this court refuses to construe section 171c of the Civil Code which was added in 1951 after the decision in the Zaragosa case because the cause of action here involved arose before that time. It is my opinion now, as it was at the time the Zaragosa case was decided, that no such addition to the Code was necessary in order to enable the wife to hold any recovery for her personal injuries as her sole and separate property. It will be interesting indeed to see how section 171c will be interpreted by this court when the occasion arises!
I would reverse the judgment and order appealed from.